JUDGMENT : ASHWANI KUMAR SINGH, J. 1. The appellants in these two appeals have challenged the judgment of conviction and order of sentence dated 29.07.1993 and 31.07.1993 respectively passed by the learned 9th Additional Sessions Judge, Patna in Sessions Trial No. 60 of 1991 arising out of Khusrupur P.S. 22 of 1990 whereby and whereunder Shankar Paswan and Satyendra Paswan (Appellants in Criminal Appeal (DB) No. 416 of 1993) have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code and rigorous imprisonment for seven years for the offence punishable under Section 27 of the Arms Act and Awdhesh Paswan, Ganesh Paswan, Lalse Paswan, Dinesh Paswan, Suresh Paswan, Kailash Paswan and Devendra Paswan (Appellants in Criminal Appeal (DB) No. 358 of 1993) have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302/149 of the Indian Penal Code and Devendra Paswan has been further convicted and sentenced to undergo rigorous imprisonment for seven years under Section 27 of the Arms Act. 2. The prosecution case is based on the fardbeyan of Kauleshwar Paswan recorded by R.S. Dubey, Officer In-Charge at Khusrupur Police Station on 11.03.1990 at 06:45 PM. 3. It has been stated by the informant that his cousin brother, namely, Balram Paswan had gone out to the field towards South from his house on 11.03.1990 at about 05:00 p.m. to attend the call of nature. While returning when he came near the khalihan of Prabhu Yadav, one Shankar Paswan took gun from Kailash Paswan, loaded cartridges from his possession and fired on Balarm Paswan from a short distance causing injury in his abdomen. When Balram Paswan wanted to flee away, Satyendra Paswan armed with gun, Nageshwar Paswan armed with bhala, Devendra Paswan armed with gun, Kailash Paswan armed with bhala, Ganesh Paswan armed with garasa, Suresh Paswan armed with gun, Dinesh Paswan armed with garasa, Awdhesh Paswan armed with garasa and Lalse Paswan armed with garasa came there and surrounded him from all the sides. On the exhortation given by Lalse Paswan that Balram was still alive and he should be killed, Satyendra Paswan being armed with gun fired from a short distance hitting Balram Paswan in his thigh and belly as a result of which he was badly injured and fell down. 4. On the exhortation given by Lalse Paswan that Balram was still alive and he should be killed, Satyendra Paswan being armed with gun fired from a short distance hitting Balram Paswan in his thigh and belly as a result of which he was badly injured and fell down. 4. It has further been stated by the informant that at the relevant time, he was at the khalihan of Prabhu Yadav at a short distance from the place of occurrence and was talking with Jatan Paswan and Samundra Paswan. In the meantime, on hearing the gun shot and the alarm raised by Balram Paswan, he rushed towards the place of occurrence with Jatan Paswan and Samundra Paswan. When he reached near the victim, Nageswar Paswan who was armed with bhala gave a blow on his head in order to kill him as a result of which he received bleeding injury over his head. On the alarm raised by him, Samundra Paswan and Jatan Paswan along with co-villagers Sahdeo Paswan, Upendra Paswan and Surendra Paswan assembled and saw the occurrence. On seeing them, the accused persons fled away. The motive behind the occurrence is that there was a dispute in respect of getting water from a hand pump installed by the Government between two groups. 5. The informant further stated that as the victim Balram Paswan was badly injured and was bleeding profusely, he was carried on a cot by some members of his family to Khusrupur Government Hospital where he was given primary medical aid and sensing the seriousness of the injuries, the doctor referred him to Patna. When Balram Paswan was being taken towards Railway Station for being taken to Patna, he died. Thereafter, the informant came together with the deceased at the Police Station. 6. On the basis of the aforesaid fardbeyan, Khusrupur P.S. Case No. 22 of 1990 was registered on 11.03.1990 at 06:45 p.m. under Sections 147, 148, 149, 302, 307, 324, 342 of the Indian Penal Code (for short ‘IPC’) against Shankar Paswan, Kailash Paswan, Satyendra Paswan, Nageshwar Paswan, Devendra Paswan, Ganesh Paswan, Suresh Paswan, Dinesh Paswan, Awdhesh Paswan @ Jhandu and Lalse Paswan and the investigation was taken by the Investigating Officer. 7. On completion of investigation, charge-sheet was submitted by the Investigating Officer against the accused-appellants. 7. On completion of investigation, charge-sheet was submitted by the Investigating Officer against the accused-appellants. After supplying the police papers as required under Section 207 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) the learned Chief Judicial Magistrate committed the case to the Court of Sessions for trial. 8. The Trial Court framed charges under Section 302 of the Indian Penal Code against all the accused-appellants for committing murder of Balram Paswan. They were further charged for the offence punishable under Section 302/149 of the Indian Penal Code. The accused-appellants Shankar Paswan, Satyendra Paswan, Denvendra Paswan and Kailash Paswan were further charged for the offence under Section 27 of the Arms Act. 9. During trial, altogether nine witnesses were examined on behalf of the prosecution in order to bring home the charges levelled against the accused persons. 10. Kauleshwar Paswan (PW-6) is the informant of the case. In his examination-in-chief, he did not say that Shankar Paswan took gun from the hands of Kailash and loaded cartridges. He stated that Shankar fired on Balram causing injury in his abdomen after which Balram was shouting that Shankar has shot at him. He stated that on the shouting, Dharmdeo, Jageshwar, Sahdeo, Devki, Jagdeo, Sulendra and Upendra came at the place of occurrence and had seen the occurrence. He stated that the accused Satyendra, Devendra, Suresh and Shankar were armed with gun whereas the accused Lalse, Ganesh, Dinesh and Awdhesh were armed with garasa and the accused Kailash and Nageshwar armed with bhala surrounded Balram Paswan. Lalse stated that since he is still alive, he should be killed. Thereafter, Satyendra fired causing injury to Balram in his belly and thigh as a result of which he fell down. When he went near Balram, Nageshwar assaulted him with bhala causing injury on his head. He stated that he and Balram were taken to Khusrupur Primary Health Centre. The doctor provided first aid to Balram and said that he should be taken to Patna. Since he was undergoing treatment, he continued at Khusrupur Primary Health Centre. Later on, he came to know that while being taken to Railway Station, Balram died. In Para-3 of the examination-in-chief itself he stated that the Daroga Ji had come to Khusrupur Primary Health Centre and recorded his fardbeyan. He did not read and explain the fardbeyan to him and took his thumb impression on it. 11. Later on, he came to know that while being taken to Railway Station, Balram died. In Para-3 of the examination-in-chief itself he stated that the Daroga Ji had come to Khusrupur Primary Health Centre and recorded his fardbeyan. He did not read and explain the fardbeyan to him and took his thumb impression on it. 11. In cross-examination, he stated that he had never said to the police that Shankar took gun from Kailash. He admitted in Para-8 that in his fardbeyan on the basis of which FIR was registered or in his previous statement, he had not stated before police that Balram had gone to attend the call of nature towards South of his house. He denied the defence suggestion that he had not sustained bhala injury. 12. Jageshwar Paswan (PW-1) stated in his testimony that he was at his house when the incident took place. He stated that he came out of his house on hearing the sound of firing. He saw that Balram Paswan was shouting while holding his stomach that Shankar had shot at him. Thereafter, all the accused persons, namely, Shankar armed with gun, Satyendra Paswan armed with gun, Devendra Paswan armed with gun, Suresh Paswan armed with gun, Lalse Paswan, Awdhesh Paswan @ Jhandu, Dinesh Paswan and Ganesh all armed with garasa and Kailash Paswan and Nageshwar Paswan armed with bhala surrounded the victim. Lalse Paswan stated that since the victim was still alive, he should be killed. At this, Satyendra Paswan shot at the victim and Nageshwar Paswan gave bhala blow to the informant Kauleshwar. When the witnesses assembled there, the accused persons fled away towards South. The victim was taken to Khusrupur Primary Health Centre where he was administered one or two injections. The occurrence was witnessed by Devki Paswan, Jagdev Paswan, Upendra Paswan, Samundra Paswan, Sahdev Paswan, Dharmendra Paswan, Jatan Paswan, Surendra Paswan and Kauleshwar. 13. In cross-examination, he admitted that he is cousin brother of Balram. He further admitted that in respect of the incident which took place on that day, the mother of the accused Devendra, namely, Sitalwati Devi had instituted a case against him and others which is pending before the court of Magistrate. He admitted that only Samundra Paswan, Kauleshwar Paswan and Jatan Paswan had arrived before him at the place of occurrence. The rest of the witnesses came at the place of occurrence after his arrival. He admitted that only Samundra Paswan, Kauleshwar Paswan and Jatan Paswan had arrived before him at the place of occurrence. The rest of the witnesses came at the place of occurrence after his arrival. He admitted that he saw only one shot being fired upon Balram and only one bhala blow being inflicted upon the informant. He denied the defence suggestion that he had not stated before the police that Nageshwar had inflicted bhala injury on Kauleshwar. He stated that he did not see any bomb explosion or any injury caused to the victim by explosion of bomb. 14. Upendra Paswan (PW-2) stated that about 05:00 p.m. on the date of occurrence, he was at his home. He reached at the place of occurrence after hearing the sound of firing. He saw that Balram was holding his stomach and shouting that he has been shot at by Shankar Paswan. He further stated that Shankar, Satyendra Paswan, Devendra Paswan, Suresh Paswan armed with gun, Nageshwar Paswan, Kailash Paswan armed with bhala, Lalse Paswan, Ganesh, Dinesh and Awdhesh @ Jhandu armed with garasa surrounded Balram. Lalse Paswan said that the victim was still alive and he should be finished. At this, Satyendra Paswan armed with gun opened fire at the victim which hit him on his belly and thigh. Nageshwar gave bhala blow to Kauleshwar resulting into injury and oozing of blood. He stated that the occurrence was witnessed by Shankar, Dharamdev, Jageshwar, Kauleshwar, Devki, Samundar, Jagdev and Surendra. According to him, the injured were carried to hospital. Later on, he came to know that the injured Balram died. 15. In cross-examination, he admitted that in respect of the occurrence which took place on that day, Sitalwati Devi had also instituted a case in which he and his brother Surendra had been made accused. He stated that bhala was pierced in the head of Kauleshwar. He also stated that when he came on hearing the sound of firing, Kauleshwar, Jatan, Samundar were there from before. He stated that the firing was made from a distance of 10-12 feet. He further stated that on that day, he had not witnessed any bomb explosion at the place of occurrence. He denied the defence suggestion that because of enmity he had made a false statement before the Court. 16. He stated that the firing was made from a distance of 10-12 feet. He further stated that on that day, he had not witnessed any bomb explosion at the place of occurrence. He denied the defence suggestion that because of enmity he had made a false statement before the Court. 16. Dharmdeo Paswan (PW-3) stated in his testimony that about 05:00 p.m. on the date of occurrence, he was at his home. On hearing sound of firing, he came at the khalihan of Prabhu Yadav. He saw Balram Paswan holding his stomach and shouting that he was shot at by Shankar Paswan. He stated that Satyendra, Shankar, Suresh Paswan and Devendra Paswan all armed with gun, Kailash and Nageshwar armed with bhala and Lalse, Ganesh, Dinesh, Awdhesh @ Jhandu armed with garasa surrounded Balram Paswan. Lalse said that as Balram was still alive, he should be finished. At this, Satyendra fired on Balram as a result of which he fell down. When Kauleshwar went to lift him, Nageshwar assaulted him with bhala. He stated that both the injured were carried to Khusrupur Primary Health Centre. The doctor administered two injections to Balram and referred him to PMCH. He further stated that when the victim Balram Paswan was being taken from Khusrupur Primary Health Centre to Patna, he died on the way. Thereafter, he went to the police station where the fardbeyan of the informant was recorded which gave rise to the present case. He denied that any case was filed by Shitalwati Devi for the occurrence of the same. 17. He admitted in his cross-examination that he did not say anyone that he had also witnessed the occurrence. He stated that when he came after hearing sound of firing, Balram was holding his belly. He was restless and profusely bleeding. Blood had fallen on the ground. He stated that after sustaining the second gun shot injury, he fell down. According to him, the firing was made from a distance of 10 feet. 18. Samundar Paswan (PW-4) stated in his testimony that the occurrence took place at about 05:00 p.m. At the relevant time, he was sitting in the khalihan of Prabhu Yadav along with Jatan Paswan and Kauleshwar Paswan. He saw that Balram Paswan was coming from South and proceeding towards his home. All of a sudden, Shankar shot at the victim Balram Paswan. He saw that Balram Paswan was coming from South and proceeding towards his home. All of a sudden, Shankar shot at the victim Balram Paswan. He began to cry seizing his stomach and he was saying that he had been shot at by Shankar. He also stated that on hearing the sound of firing and alarm raised by the victim, the villagers assembled there. He stated that the victim Balram was surrounded by Shankar Paswan, Satyendra Paswan, Devendra Paswan, Suresh Paswan all armed with gun, Lalse Paswan, Ganesh Paswan, Awdhesh Paswan @ Jhandu, Dinesh Paswan all armed with garasa and Kailash Paswan and Nageshwar both armed with bhala. Lalse exhorted that since the victim was still alive, he should be finished. At this, Satyendra shot at the victim. The bullet hit in his abdomen and thigh. When Kauleshwar went to lift the victim, Nageshwar gave bhala blow on his head. He stated that the occurrence was witnessed by Jatan, Kauleshwar, Devki, Jageshwar, Dharmdev, Shahdev, Upendra, Surendra and Jagdev. He stated that he along with others shifted the injured to Khusrupur Primary Health Centre where he was administered two injections. He died on the way near Khusrupur Railway Station. Thereafter, the dead body was taken to the police station. 19. In cross-examination, he admitted that he has been made accused in the case instituted by Shitalwati Devi. He stated that in his previous statement, he had disclosed that he was sitting together with Jatan and Kauleshwar in the khalihan of Prabhu Yadav. He further stated that he had stated before the police that Balram was coming from South after attending the call of nature. He stated that he disclosed that all of a sudden, Shankar opened fire causing injury to Balram. He stated that after firing, the victim wanted to flee away towards his house but he was surrounded. He stated that bhala was pierced into the head of the Kauleshwar. He denied the defence suggestion that he had given a false statement. 20. Jatan Paswan (PW-5) stated that at about 05:00 p.m. on the date of occurrence, he was sitting together with Kauleshwar and Samundar in the khalihan of Prabhu Yadav. He saw that the victim was coming from the South after answering the call of nature. He saw Shankar shot at Balram Paswan hitting in his stomach. 20. Jatan Paswan (PW-5) stated that at about 05:00 p.m. on the date of occurrence, he was sitting together with Kauleshwar and Samundar in the khalihan of Prabhu Yadav. He saw that the victim was coming from the South after answering the call of nature. He saw Shankar shot at Balram Paswan hitting in his stomach. After sustaining the injuries Balram Paswan caught hold of his belly and raised alarm that he had been shot at by Shankar. On hearing the sound of firing and the alarm raised by the victim, Dharmdev, Shahdev, Jagdev, Devki, Upendra and Jageshwar came. After the victim was shot by Shankar with fire arm, Lalse uttered that since the victim was still alive, he should be killed. At this Satyendra fired hitting Balram and when Kauleshwar went to lift him, Nageshwar hit him with bhala in his head. He stated that the victim Balram fell down. Subsequently, the accused persons fled towards South. The victim was shifted to Khusrupur Primary Health Centre where he was administered two injections and was referred to Patna. While the victim was being carried to Patna, he died at the platform of Khusrupur Railway Station. Then he was taken to the police station. From the police station, the dead body was brought to Patna along with the police constable. 21. In cross-examination, he admitted that the accused Lalse Paswan had lodged a criminal case in 1986 against him which is still pending. He stated that in his previous statement before the police, he had said that when Balram was returning home after attending the call of nature, Shankar took gun from Kailash and loaded cartridges from his possession and fired. He stated that Shankar and Kailash were arguing among themselves that who will kill him. He stated that he had disclosed to the Investigating Officer that Balram was shouting that Shankar has fired at him. He further stated that after the accused persons left the place of occurrence, he had disclosed the name of the accused persons. 22. Dr. A.K. Yadav (PW-7) had conducted the postmortem examination on the body of the deceased. He stated in his testimony that on 13.03.1990, he was posted as an Assistant Professor in the Department of Forensic Medicine, Nalanda Medical College Patna. 22. Dr. A.K. Yadav (PW-7) had conducted the postmortem examination on the body of the deceased. He stated in his testimony that on 13.03.1990, he was posted as an Assistant Professor in the Department of Forensic Medicine, Nalanda Medical College Patna. On that day, at 10:30 a.m. he performed postmortem examination on the body of the deceased Balram Paswan which was received at 03:30 p.m. on 12.03.1990 and found the following ante-mortem injuries: (i) 10 splinter injuries of same size of about 2 mm diameter with blackening and inversion of margin. This was spread in the area of 5” diameter on upper part of right thigh. On removal of soft tissues, laceration of blood vessels tissues and blood clots were found. (ii) 35 splinter injuries were found on the lower abdomen and waist in an area of 6” diameter between mid abdominal line and mid line between right armpit and right illiac crest. The size was same about 2 mm each. Margins were inverted and blackened. On removal of soft tissues underlying area was filled with blood and blood clots. Intestine were found ruptured and lacerated at places. The underlying blood vessels and omentum were also found lacerated and filled with blood and blood clots and splinters were collected as far as possible, cleaned, sealed and handed over to the constable. (iii) 7 splinter injuries of 2 mm diameter were found on the lower part of the right chest in the area of 4” diameter. The margins were blackened and inverted. On removal of skin underlying intercostal muscles. Diaphgram and liver were found lacerated and the underlying area was filled with blood and blood clots. Splinters were collected, cleaned and sealed and handed over to the constables. 23. He opined that the injury no. 1 was simple and caused by smooth bore firearm. The injury nos. 2 and 3 were grievous and dangerous caused by smooth bore firearm from the range of about 12 meters distance. The injuries were caused due to more than one shot. The cause of death was haemorrhage and shock. The time elapsed since death was within 24 to 36 hours from the time of postmortem examination. He proved the postmortem report in his writing and signature which was marked as Exhibit-1. 24. In cross-examination he admitted that usually splinters are used in bombs. He stated that in country made shots splinters are used. The time elapsed since death was within 24 to 36 hours from the time of postmortem examination. He proved the postmortem report in his writing and signature which was marked as Exhibit-1. 24. In cross-examination he admitted that usually splinters are used in bombs. He stated that in country made shots splinters are used. He admitted that he had not seen such type of country made splinter shots. He admitted that he is not an expert of ballistic. He stated that the injuries may be possible by two or three shots. He stated that the blackening of margin of skin is possible in case of departure of the splinters or bullets irrespective of the range of firing. It may be possible from 12, 20 or 30 meters. He stated that he has deposed on the basis of his personal experience which is not based on books. He stated that it is wrong to say that blackening is not possible in a case of firing from the range of 12 meters. Blackening of the margin of wounds is due to smoke of the gun powder and charring due to flame and also temperature of the pellets or splinters. He admitted that in Modi’s Medical Jurisprudence, it is stated that in case of firing beyond the range of six feet, blackening of margin of wound may not be possible. He stated that rigor mortis in the month of March vanishes after 24 hours and decomposition process starts. He stated that it is not correct to say that his opinion regarding the splinters being fired by the smooth bore firearm and blackening of margin of wounds is against the opinion of the authors of Medical Jurisprudence. 25. Dr. Basudeo Prasad Verma (PW-8) was posted at Khusrupur Primary Health Centre as Medical Officer on 11.03.1990. On that day, he examined Kauleshwar Paswan and found one lacerated wound 2½” x 1¼” over the left side of scalp. He stated that the injury may be possible by hard and blunt substance such as blunt portion of bhala. He opined that the nature of injury was simple and was caused within six hours. He proved his writing and signature on the injury report which was marked as Exhibit-2. 26. In cross-examination, he stated that the injury was not possible due to fall. He opined that the nature of injury was simple and was caused within six hours. He proved his writing and signature on the injury report which was marked as Exhibit-2. 26. In cross-examination, he stated that the injury was not possible due to fall. However, he admitted that lacerated wounds are possible on coming in contact with any hard and blunt surface. 27. Shiv Shankar Singh (PW-9), a constable has proved the formal FIR in the writing of C.D. Singh, which was marked as Exhibit-3. He stated that he knew R.S. Dubey, a Sub-Inspector of Police, posted at Khusrupur. He also knew his writing. He stated that the fardbeyan was in the writing of Mr. Dubey. The fardbeyan was marked as Exhibit-4. He stated that the case diary of Khusrupur P.S. Case No. 22 of 1990 was in the writing of C.D. Singh. The entire case diary was marked as Exhibit-5. 28. In cross-examination, he stated that he does not know the full name of R.S. Dubey. He admitted that he is not in possession of any of his writing. He further admitted that he does not possess anything written by C.D. Singh. He does not know in which police stations he had been posted. He stated that he is not aware as to whether C.D. Singh is alive or dead. 29. After the examination of the prosecution witnesses, the statements of the accused-appellants were recorded under Section 313 of the Cr.P.C. In their respective statements, the accused-appellants claimed that they did not commit any crime. 30. The defence did not lead any evidence on their behalf. 31. After holding the trial and hearing the parties, the trial court convicted and sentenced the appellants in the manner stated in the opening para of this judgment. 32. Being aggrieved by the impugned judgment of conviction and order of sentence, the appellants have preferred these two appeals. 33. Mr. Thakur, learned amicus curiae submitted that the earliest version given to the police by the informant has been suppressed in the present case. He contended that the manner, time and place of occurrence were not proved by prosecution with cogent and reliable evidence. The witnesses examined in this case have deposed falsely with intention to implicate the accused-appellants. The informant did not support the manner of occurrence as stated by him in the FIR while being examined before the court. He contended that the manner, time and place of occurrence were not proved by prosecution with cogent and reliable evidence. The witnesses examined in this case have deposed falsely with intention to implicate the accused-appellants. The informant did not support the manner of occurrence as stated by him in the FIR while being examined before the court. He completely changed his version. The other witnesses who were examined in this case have also contradicted the manner of occurrence as narrated in the FIR. He contended that the six witnesses who were examined as eyewitnesses in this case have contradicted each other giving different version. He further contended that PWs. 1, 2 and 3 are non-FIR witnesses and the persons who are mentioned as witness in the FIR have not been examined in this case. Therefore, an inference can be drawn that the witnesses mentioned in the FIR did not agree to support the case of the informant. Hence, the non-FIR witnesses were brought to support the case of the prosecution. He contended that falsity of the prosecution case would be evident from the medical evidence of the doctor who held the postmortem examination on the body of the deceased. The doctor said that he found three splinter injuries on the body of the deceased surrounded with blackening. He argued that splinters are used in a substance which can be made to explode like bomb. Finding of splinters in all the injuries which were the cause of death of the deceased would clearly indicate that it was a death caused due to bomb explosion. He further contended that the doctor was not truthful while deposing before the court would be manifest from the fact that he said that blackening of margin of wound is possible if firing is made from a distance of 12, 20 and 30 meters. The said opinion of the doctor is contrary to it Modi’s Medical Jurisprudence and Medical Jurispurendence authored by other experts who have said that there would be no blackening of margin if the firing is done beyond six feet. He further contended that in the instant case, though the informant claims that he sustained bhala injury, the injury report (Exhibit-2) would clearly show that the injury found on the person of the informant was caused by a hard and blunt substance. 34. On the other hand, Ms. He further contended that in the instant case, though the informant claims that he sustained bhala injury, the injury report (Exhibit-2) would clearly show that the injury found on the person of the informant was caused by a hard and blunt substance. 34. On the other hand, Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State submitted that the prosecution has led reliable evidence before the court on the basis of which the Trial Court has rightly held the appellants guilty of committing murder of Balram Paswan. There are altogether six eyewitnesses to the occurrence and barring minor discrepancies in their evidence, there is nothing to doubt the prosecution case. It is well settled that minor discrepancies or minor contradictions cannot form basis to discard the otherwise reliable evidence. She further contended that the medical evidence fully corroborates the prosecution case. The doctor has rightly said that splinters are used in local cartridges and the injuries found on the person of the deceased were caused by smooth bore firearm. The injury found on the skull of the informant has also been corroborated by medical evidence. The doctor who examined the informant rightly said that the injury might have been caused by the blunt portion of the bhala. 35. We have head Mr. Ajay Kumar Thakur, learned amicus curiae and Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State and carefully perused the records. 36. The fardbeyan (Exhibit-4) would indicate that the informant gave his statement before R.S. Dubey, Officer-In-Charge of Khusrupur Police Station at Khusrupur Police Station at 06:45 p.m. on 11.03.1990 but while leading evidence the informant (PW-6) stated in his examination-in-chief that Daroga Ji came to the Khusrupur Primary Health Centre and recorded his statement. It is not known what happened to the statement of the informant recorded by the police officer at Khusrupur Primary Health Centre. 37. The fardbeyan of the informant Kauleshwar Paswan on the basis of which the FIR was registered would indicate that the contents of the fardbeyan was read over by Mr. R.S. Dubey and explained to him and finding them to be true and correct, he put his thumb impression. However, in his testimony, the informant stated that the Police Officer who recorded his fardbeyan did not read its contents and took his thumb impression over it. R.S. Dubey and explained to him and finding them to be true and correct, he put his thumb impression. However, in his testimony, the informant stated that the Police Officer who recorded his fardbeyan did not read its contents and took his thumb impression over it. In the fardbeyan, the informant stated that the accused-appellant Shankar Paswan took gun from Kailash Paswan, loaded cartridges from his possessions and fired on Balram Paswan but while being examined in the court he stated that he had not said that Shankar Paswan took gun from Kailash Paswan and fired on Balram Paswan rather he had said that Shankar fired on Balram Paswn. Thus, the informant himself has created doubt about the genuineness of the fardbeyan and its contents on the basis of which the FIR was instituted. 38. We further find from the testimony of the witnesses as also the FIR that the deceased Balram Paswan was first taken to Khusrupur Primary Health Centre on a cot where the doctor provided him treatment but there is no evidence of the treatment provided to the victim at Khusrupur Primary Health Centre. 39. PW-3 stated in his evidence that seeing the serious condition of Balram Paswan after providing him initial treatment, the doctor referred him to Patna for better treatment and while being taken to Patna he died at the platform of the Khusrupur Railway Station. Thereafter his dead body was brought to the police station where the fardbeyan of the informant was recorded by R.S. Dubey at 06:46 p.m. on 11.03.1990. On the contrary, the informant stated in his examination-in-chief that he and the injured Balram Paswan were taken to Khusrupur Primary Health Centre where Balram Paswan was administered two injections by the doctor and was advised to be taken to Patna looking at his serious condition. He further stated that he was treated at Khusrupur Primary Health Centre. He remained there when the victim Balram Paswan was being taken to Railway Station. Subsequently, he came to know that Balram Paswan died. 40. Thus, apparently, when Balram Paswan died and his body was taken to the Police Station, the informant was not accompanying him rather he was being treated at Khusrupur Primary Health Centre. 41. Under the circumstance, it is not understandable as to how Mr. Subsequently, he came to know that Balram Paswan died. 40. Thus, apparently, when Balram Paswan died and his body was taken to the Police Station, the informant was not accompanying him rather he was being treated at Khusrupur Primary Health Centre. 41. Under the circumstance, it is not understandable as to how Mr. R.S. Dubey has made endorsement at the top of the fardbeyan of Kauleshwar Paswan that it was recorded by him at Khusrupur Police Station. 42. Apparently, either the fardbeyan on the basis of which the FIR was registered is a fabricated document or the informant is not a truthful witness. The mystery could have been clarified if Mr. R.S. Dubey who had recorded the fardbeyan and taken up the investigation initially would have been examined during trial. His non-examination without any plausible explanation would clearly make the fardbeyan and the formal FIR on the basis of which the foundation of the case was laid a suspicious document. 43. When we look a the medical evidence, we find that Dr. A.K. Yadav (PW-7), who performed the autopsy found splinter injuries on the person of the deceased Balram Paswan. He proved the postmortem report which was marked as Exhibit-1. A perusal of the Exhibit-1 would demonstrate that it was Awadhesh Mishra, a Home Guard who was accompanying with the corpse and had identified the deceased. The said Home Guard Awadhesh Mishra was not examined during trial. 44. It is not known what happened to the splinters which were collected, cleaned, sealed and handed over by PW-7 to the Home Guard. 45. In cross-examination, PW-7 admitted that usually splinters are used in bombs. He stated that in country made shots splinters are used. He further admitted that he had not seen such type of country made splinter shots. There is no evidence that the splinters were sent to ballistic expert. There is nothing to suggest that cards or wads or pellets were recovered from the place of occurrence. 46. It would be pertinent to note here that altogether three injuries were found on the person of the deceased. PW-7 stated in his evidence that injury no. 1 was simple. It was caused by smooth bore firearm. He stated that injury nos. 2 and 3 were grievous and were caused by smooth bore firearm from the range of about 12 meters distance. He found the margins of injuries inverted and blackened. PW-7 stated in his evidence that injury no. 1 was simple. It was caused by smooth bore firearm. He stated that injury nos. 2 and 3 were grievous and were caused by smooth bore firearm from the range of about 12 meters distance. He found the margins of injuries inverted and blackened. 47. Though, he stated that it is wrong to say that blackening is not possible in case of firing from the range of 12 meters, he admitted that according to the Modi’s Medical Jurisprudence, blackening of margin of wound beyond the range of 6 feet may not be possible. 48. PW-2 Upendra Paswan and PW-3 Dharmdeo Paswan stated in their testimony that firing was made from a distance of 10-12 feet whereas the informant stated in his testimony that the first shot was fired from 15 feet. He further stated that the accused surrounded the deceased in a circle of 20 hands. The opinion of the doctor that injury nos. 2 and 3 on the person of the deceased was caused by firearm from range of about 12 meter distance is not consistent with the oral evidence of the eyewitnesses. There is great discrepancy in the oral evidence relating to distance from which shots were fired and the evidence of the medical expert. The opinion of the doctor that blackening of margin of skin is possible in case of gun shots are fired from a distance of 12, 20 or 30 meters is bereft of any logic or objectivity. As per the Medical Jurisprudence and Toxicology authored by Modi, if a firearm is discharged very close the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed and the cloths covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol is discharged within about two feet. In the instant case, the doctor who performed the autopsy opined that injuries were caused by smooth bore firearm from range of 12 meter. PW-2, PW-3 and the informant stated that firing was made from a distance of 10 to 15 feet. In case of firing from 10 to 15 feet by smooth bore shotgun as stated by PWs. 2 and 3 and the informant or in case of firing from a range of 12 meter as stated by the doctor who conducted the autopsy blackening of margin of wound would not have been possible. 49. Further, the doctor who conducted the autopsy did not find any wound of entry or wound of exit. He did not rule out the possibility of splinter injury in case of bomb explosion. No effort was made by the prosecution to ascertain as to whether the injuries were caused by gun shot or bomb explosion. The splinters recovered by the doctor and handed over to the constable were not sent to ballistic expert in order to ascertain as to whether they were discharged from the gun shots or bomb explosion. 50. We are mindful of the fact that non-seizure or non-sending of the weapons of assault, cartridges and pellets to ballistic expert for examination may not be fatal to the prosecution case, if the ocular testimony is found credible and cogent. However, in the present case, neither the oral testimony of the witnesses is found credible nor the oral evidence is duly corroborated by medical evidence. 51. When we look at the evidence in respect of the injury caused to the informant, we find that it is the consistent case of the prosecution right from the beginning that it was Nageshwar who had inflicted bhala injury in the scalp of the informant which caused serious injury. It is well known that bhala is a weapon consisting of a shaft, usually of wood, with a sharp pointed head of iron or steel. Dr. It is well known that bhala is a weapon consisting of a shaft, usually of wood, with a sharp pointed head of iron or steel. Dr. Basudeo Prasad Verma (PW-8) who examined the informant at Khusrupur Primary Health Centre found a lacerated wound measuring 2½” x 1¼” over his left side of scalp. According to him, the injury was caused by a hard and blunt substance such as blunt portion of bhala. 52. It is not the case of the prosecution that the assault was made by Nageshwar on the head of the informant by the blunt portion of bhala. On the contrary, PW-2 admitted in his evidence that bhala was pierced in the head of Kauleshwar. The doctor did not find any incised or penetrating or puncture wound on the skull of the informant. The injury found on the person of the informant is not in sync with the allegation made in the FIR or the evidence adduced during trial. 53. Another important aspect of the matter is that the witnesses examined during trial have consistently stated that after receiving the gun shot injury, the deceased Balram Paswan bleeded profusely. However, there is no evidence as to whether blood or blood stained earth was found and seized at the place of occurrence. The cot on which the victim was carried to Khusrupur Primary Health Centre was not produced. The weapon of the crime was also not seized. 54. The cloud hovering around the prosecution case could have been cleared by the Investigating Officer to a great extent. He was a material witness because he had investigated the case, recorded the statement of witnesses, went to the spot for objective findings and prepared the case diary. He was required to appear before the court during trial and explain the truth. The witnesses examined during trial are not consistent. The informant himself has doubted and disputed the facts narrated in the fardbeyan recorded by one R.S. Dubey, who had initially investigated the case. Neither R.S. Dubey who recorded the fardbeyan and initially investigated the case nor the subsequent Investigating Officer C.D. Singh was examined during trial. 55. The witnesses examined during trial are not consistent. The informant himself has doubted and disputed the facts narrated in the fardbeyan recorded by one R.S. Dubey, who had initially investigated the case. Neither R.S. Dubey who recorded the fardbeyan and initially investigated the case nor the subsequent Investigating Officer C.D. Singh was examined during trial. 55. Though, it is a settled principle of law that non-examination of the Investigating Officer is not fatal for prosecution in each and every case, under the facts and circumstances of the present case, we are of the opinion that due to non-examination of the Investigating Officer serious prejudice has been caused to the defence. 56. Thus, on consideration of the entire evidence, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubts against the appellants. 57. The appeals are allowed. The impugned judgment of conviction dated 29.07.1993 and the consequent order of sentence dated 31.07.1993 passed by the learned 9th Additional Sessions Judge, Patna in Sessions Trial No. 60 of 1991 arising out of Khusrupur P.S. Case No. 22 of 1990 are set aside. 58. The appellants, namely, Awadesh Paswan, Ganesh Paswan, Lalse Paswan, Suresh Paswan, Dinesh Paswan, Kailash Paswan and Devendra Paswan (in Criminal Appeal (DB) No. 358 of 1993) and Shankar Paswan and Satyendra Paswan (in Criminal Appeal (DB) No. 416 of 1993) are acquitted of the charges levelled against them. 59. Since the appellants, namely, Awadesh Paswan, Ganesh Paswan, Lalse Paswan, Suresh Paswan, Dinesh Paswan, Kailash Paswan and Devendra Paswan (in Criminal Appeal (DB) No. 358 of 1993) are on bail, they are discharged from the liabilities of their bail bonds whereas the appellants Shankar Paswan and Satyendra Paswan (in Criminal Appeal (DB) No. 416 of 1993) who are in custody are directed to be set at liberty forthwith unless their detention is required in any other case.